Exhibit 10.9
SUBORDINATION AGREEMENT (Liens)
This SUBORDINATION AGREEMENT (the "Agreement") is dated January 13, 2000
and is between BANKBOSTON, N.A., a national bank with offices at 000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank"), and XXXXXXXX XXXXXXX, an
individual with a mailing address of 00 Xxxx Xxxx Xxxx Xxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 ("Subatis"). Each Creditor (hereinafter defined) has filed
or may file financing statements under the Uniform Commercial Code (the "UCC")
and the Creditors desire to agree among themselves as to the relative priority
of their respective security interests in the Collateral.
For good and valuable consideration, the receipt of which is acknowledged,
the Bank and Subatis agree as follows:
1. Definitions. As used in this Agreement:
Bank shall mean BankBoston, N.A., its successors and assigns.
Bank Obligations means all indebtedness, liabilities and obligations of
the Obligor to the Bank of whatsoever nature and howsoever evidenced, whether
direct or indirect, absolute or contingent, now existing or hereafter incurred
or arising (including all renewals, extensions or modifications thereof and all
fees, costs and expenses incurred by the Bank in connection with the
preparation, administration, collection or enforcement thereof), including
without limitation, the indebtedness, liabilities and obligations of the Obligor
set forth in the Loan and Security Agreement.
Bank Security Agreement means all of the agreements now existing or
hereafter entered into pursuant to which the Obligor grants or purports to grant
a security interest in the Collateral (or a portion thereof) to the Bank as
security for the Bank Obligations, including without limitation, the Loan and
Security Agreement.
Creditor means either or both of the Bank or Subatis, as the context
requires.
Collateral shall mean all personal property, and other assets of the
Obligor, now owned or hereafter acquired, in or upon which either or both of the
Creditors now or hereafter has a lien, including without limitation, the
"Collateral" as defined in the Loan and Security Agreement, and all equipment,
inventory, accounts and general intangibles, as well as all chattel paper,
contract rights, documents of title (as such terms are used or defined in the
UCC) and all real property and all other personal property and fixtures of every
kind and description, tangible and intangible, and all products and proceeds of
such property (including, without limitation, insurance and condemnation
proceeds and escrow accounts covering any such property) and books and records
relating thereto, in which a security interest has been granted pursuant to any
security agreement.
Loan and Security Agreement means that certain Loan and Security Agreement
dated January 13, 2000 by and between the Bank and the Obligor.
Obligor means Intrinsix Corp., a Massachusetts corporation with a
principal place of business at 00 Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx.
Person means an individual, partnership, corporation, business, trust,
joint stock company, unincorporated association, joint venture, governmental
authority or other entity of whatever nature.
Security Interest means any security interest of a Creditor in any
Collateral, however arising.
Subatis Obligations means all indebtedness, liabilities and obligations of
the Obligor to Subatis of whatsoever nature and howsoever evidenced, whether
direct or indirect, absolute or contingent, now existing or hereafter incurred
or arising (including all renewals, extensions or modifications thereof and all
fees, costs and expenses incurred by Subatis in connection with the preparation,
administration, collection or enforcement thereof), including without limiting
the generality of the foregoing, pursuant to leases, loans and guaranties
provided "Subatis Obligations" shall not include any liabilities or obligations
to Subatis with respect to any salary or payments made to Subatis as
compensation in the ordinary course of the Obligor's business.
Subatis Security Agreement means all of the agreements pursuant to which
the Obligor grants or purports to grant a security interest to Subatis as
security for the Subatis Obligations.
2. Priority of Security Interests.
(a) Each Creditor agrees that the Security Interest of the Bank in the
Collateral ranks and will rank first and senior in priority,
operations and effect to the priority, operation and effect of the
Security Interest of Subatis in the Collateral. Each Creditor agrees
that the Security Interest of Subatis in the Collateral ranks and
will rank in all respects behind and junior in priority, operation
and effect to the priority, operation and effect of the Security
Interest of the Bank in the Collateral.
(b) The priorities specified herein are applicable irrespective of any
statement in any security agreement or in any other agreement to the
contrary, the time or order or method of attachment or perfection
(or failure to perfect) of Security Interests or the time or order
of filing of financing statements or expected acquisition of
purchase money or other security interests.
3. Division of Proceeds. The proceeds of any sale, disposition or other
realization by either Creditor upon the Collateral (or any portion
thereof) will be distributed in the following order of priorities:
First, to the Bank in an amount equal to all reasonable costs and expenses
incurred by the Bank in connection with or incident to the custody,
preservation, use or operation of, or the sale of, collection from, or
other realization upon, any of the Collateral;
Second, to the payment or prepayment of all Bank Obligations; and
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Third, to the payment or prepayment of all Subatis Obligations.
4. No Representation or Warranties. The Creditors agree that they have not
made to each other nor do they hereby otherwise make to each other any
representations or warranties, express or implied, nor do they assume any
liability to each other with respect to: (1) the enforceability, validity,
value or collectibility of any of the Collateral (or any portion thereof)
or any guaranty or security which may have granted to either of them in
connection with any of the Obligations; or (2) Obligor's right, title,
interest, or right to transfer any of the Collateral (or any portion
thereof).
5. No Liability. Neither Creditor shall be liable to the other Creditor for
any action or failure to act or any of the judgment, negligence, or
mistake, or oversight whatsoever on the part of such Creditor or such
Creditor's agents, officers, employees or attorneys with respect to any
transaction relating to any of the obligations owed to it or the
enforcement of the Security Interest granted to it.
6. Obligations Under This Agreement Not Affected. The Creditors agree that
each Creditor may, at its sole discretion and without notice to the other
Creditor take any or all of the following actions with respect to the
obligations owed to such Creditor without affecting any of such Creditor's
rights under this Agreement; each Creditor may permit or agree with
Obligor with respect to:
(a) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations owed to it, or any
other amendment or waiver of or any consent to departure from any
agreement related to such obligations or any security agreement
executed for the benefit of such Creditor or any other agreements
related thereto;
(b) any release or amendment or waiver of or consent to departure from
any guaranty for all or any of the obligations owed to it, or any
release of any Person at any time primarily or secondarily liable
for all or any part of the obligations owed to it and/or any
collateral or security therefor;
(c) any alteration or exchange of any obligations owed to it, or release
or compromise of any such obligation;
(d) release its Security Interest in the Collateral; or
(e) exercise or refrain from exercising any rights against any Person
liable to such party under the obligations.
7. Assignment. Each Creditor may, from time to time, without notice to the
other Creditor, and without affecting any of such Creditor's rights
hereunder, assign or transfer any or all of the obligations owed such
Creditor or any interest therein; provided that neither Creditor may
assign any or all of its interests in the Collateral (or any portion
thereof) unless and until the assignee or transferee of such Creditor
shall agree in writing to be bound by the provisions of this Agreement.
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8. Specific Performance. Each Creditor is hereby authorized to demand
specific performance of this Agreement at any time when the other Creditor
shall have failed to comply with any of the provisions of this Agreement
applicable to such Creditor. Such Creditor hereby irrevocable waives any
defense based on the adequacy of a remedy at law which might be asserted
as a bar to such remedy of specific performance.
9. Amendment; Waiver. No amendment or waiver of a provision of this Agreement
shall be effective unless the same shall be in writing and signed by both
Creditors, and any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No delay
on the part of any Creditor in the exercise of any right, power or remedy
shall operate as a waiver thereof, nor shall any single or partial
exercise by such Creditor of any right, power or remedy preclude other of
further exercise thereof, or the exercise of any other right, power or
remedy.
10. Notices. Any notice required or permitted to be given under this Agreement
may be, and shall be deemed, given when deposited in the United States
mail, postage prepaid, or by telecopier or nationally recognized overnight
courier when delivered to the appropriate office for transmission, charges
prepaid, addressed to the applicable party at the address shown above, or
at such other address as it may, by written notice received by the other
party to this Agreement, have designated as its address for such purpose.
11. Entire Agreement. This Agreement embodies the entire agreement and
understandings of the Creditors and supersedes all prior agreements and
understandings of the Creditors relating to the subject matter herein
contained.
12. Captions. Section captions used in this Agreement are for convenience
only, and shall not affect the interpretation of the provisions of this
Agreement.
13. Counterparts. This Agreement may be executed by the undersigned parties in
any number of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This
Agreement shall be become effective as of the date hereof when one or more
counterparts has been executed and delivered by each of the parties
hereto.
14. Termination. This Agreement shall remain in full force and effect until
the later of (1) the repayment in full of the Bank Obligations or (2) the
repayment in full of the Subatis Obligations.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts. Except as
otherwise provided in this Agreement, the rights and priorities of the
Creditors shall be determined in accordance with applicable law.
16. Successors and Assigns; Benefit of Agreement. This Agreement is solely for
the benefit of the Creditors and their successors, designees or assignees
and no other Persons, including, without limitation, the Obligor, shall
have any benefit, priority or interest under, or because of the existence
of, this Agreement.
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17. Severability of Provisions. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to each such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement in any other jurisdiction.
18. Controlling Contract. In the case of any conflict between this Agreement
and any security agreement, this Agreement shall control.
IN WITNESS WHEREOF, each Creditor has caused this Agreement to be duly
executed as of the 13th day of January, 2000.
BANKBOSTON, N.A.
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Dutich
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Witness Its Duly Authorized Officer
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Witness Xxxxxxxx Xxxxxxx
Read and agreed to by the Obligor:
INTRINSIX CORP.
/s/ Xxxxx X. Dutich By: /s/ Xxxxx Xxxxx
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Witness to both Xxxxx Xxxxx, President
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, Treasuer
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